Supreme Court Annual Digest 2023 - Criminal Minor Acts

Abkari Act

Abkari Act; Section 8 - The testimonies of official witnesses cannot be discarded simply because independent witnesses were not examined - the person receiving the information of the crime or detecting the occurrence thereof, can investigate the same. Questioning such an investigation on the basis of bias or such like factor, would depend on the facts and circumstances of each case. It is not amenable to a general unqualified rule that lends itself to uniform application. (Para 16-26) 2023 LiveLaw (SC) 627

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Special Leave Petition challenging a report of the Advisory Board / Opinion of the Board under the COFEPOSA Act is not maintainable. 2023 LiveLaw (SC) 547

Dowry Prohibition Act, 1961

Dowry Prohibition Act, 1961; Section 3 & 4 - Denial of anticipatory bail and a further direction to surrender before the Court and seek regular bail – Held, there are no startling features or elements that stand out or any exceptional fact disentitling the appellant to the grant of anticipatory bail. Once the chargesheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations and the maximum sentence of the offences they were likely to carry, ought to have granted the bail as a matter of course. However, the court did not do so but mechanically rejected and, virtually, to rub salt in the wound directed the appellant to surrender and seek regular bail before the Trial Court. Therefore, the High Court fell into error in adopting such a casual approach. The impugned order of rejecting the bail and directing the appellant, to surrender and later seek bail, therefore, cannot stand, and is hereby set aside. (Para 12) 2023 LiveLaw (SC) 583

Foreign Exchange Regulation Act, 1973

Foreign Exchange Regulation Act, 1973; Sections 56, 57, 61 - Foreign Exchange Management Act, 1999; Sections 49 (1), (3), (4) - Enforcement Officer appointed and authorised under the repealed provisions of the FERA, will continue to have the authority and competence to file a complaint for the offences punishable under the Act before the expiry of the sunset period of 2 years provided under Section 49(3) of the FEMA. (Para 11) 2023 LiveLaw (SC) 820

Juvenile Justice (Care and Protection of Children) Act, 2015

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 19(1)(i) - Children's Court must hold an inquiry to determine whether the child should be tried as an adult. (Para 9 - 12) 2023 LiveLaw (SC) 857

Juvenile Justice (Care and Protection of Children) Act, 2000; Section 16 r/w 15(1)(g) - If the date of birth of the petitioner is 02.05.1989, he was 16 years 7 months old as on the date of the crime, i.e., 21.12.2005. Accordingly, the petitioner was a juvenile in conflict with the law on the date of commission of the offence. The maximum period for which the petitioner could have been in custody is three years. However, as the plea of juvenility was raised for the first time in the present writ petition before us, the process of criminal law, which commenced in 2005, led to the petitioner being convicted and sentence for life imprisonment concurrently by the Trial Court, the High Court as well as the Supreme Court. In the meanwhile, the petitioner has undergone more than 12 years of imprisonment. Having accepted the report of the II Additional Sessions Judge, the petitioner can no longer be incarcerated. (Para 6 – 8) 2023 LiveLaw (SC) 757

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 75 - Penal Code, 1860 - Sections 323 and 504 - Muzaffarnagar school student slapping case, in which a primary school teacher punished a Muslim boy by asking other students to slap him. Held, the victim must have undergone trauma. The State Government to ensure that proper counselling is extended to the victim of the offence through an expert child counsellor. Even the other students, who were involved in the incident, in the sense that they allegedly followed the mandate issued by the teacher and assaulted the victim, need counselling by an expert child counsellor. The State Government will take immediate steps to do the needful by providing services of an expert child counsellor. 2023 LiveLaw (SC) 843

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 75 - Penal Code, 1860 - Sections 323 and 504 - Student slapping case - Physical punishment inflicted upon a student who belongs to a minority community. Considering the manner in which the Police have delayed action and especially the fact that though a case of cognizable offence was made out, only a non-cognizable case was reported, we direct that the investigation shall be conducted under the supervision of a senior IPS Officer, nominated by the State Government. The IPS Officer so nominated will go into the question of whether the second proviso to Section 75 of the JJ Act is attracted and whether Section 153A of the IPC needs to be applied. 2023 LiveLaw (SC) 843

Juvenile Justice (Care and Protection of Children) Act, 2015 - Section 9 (2) - Once the applicant has discharged his onus, in support of his claim of juvenility by producing the date of birth certificate from the school, the State had to come up with any compelling contradictory evidence to show that the recordal of his date of birth in the admission register was false. 2023 LiveLaw (SC) 244

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 9 (2) - Death penalty case reopened to inquire into juvenility claim - Convict found to be a juvenile after 28 years of offence - Supreme Court orders release. 2023 LiveLaw (SC) 244

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 9 (2) - So far as the procedure for making an inquiry by the Court, Section 9(2) of the 2015 Act does not prescribe scrupulously following trial procedure, as stipulated in the 1973 Code and the Indian Evidence Act, 1872. 2023 LiveLaw (SC) 244

Juvenile Justice (Care and Protection) Act, 2015; Section 18 - The JJB having found a child to be in conflict with law who may have committed a petty or serious offence and where heinous offence is committed, the child should be below 16 years, can pass various orders under clauses (a) to (g) of sub-section (1) and also sub-section (2). However, the net result is that whatever punishment is to be provided, the same cannot exceed a period of three years and the JJB has to take full care of ensuring the best facilities that could be provided to the child for providing reformative services including 19 education, skill development, counselling and psychiatric support. (Para 16) 2023 LiveLaw (SC) 159

Juvenile Justice (Care and Protection) Act, 2015; Section 9(3) - A trial conducted and conviction recorded by the Sessions Court would not be held to be vitiated in law even though subsequently the person tried has been held to be a child - It is only the question of sentence for which the provisions of the 2015 Act would be attracted and any sentence in excess of what is permissible under the 2015 Act will have to be accordingly amended as per the provisions of the 2015 Act. (Para 30-33) 2023 LiveLaw (SC) 159

Narcotic Drugs and Psychotropic Substances Act, 1985

Narcotic Drugs and Psychotropic Substances Act, 1985 - the law does not require only an independent witness to prove a charge attracting the provisions of NDPS Act. (Para 7) 2023 LiveLaw (SC) 990

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 52A – Disposal of seized narcotic drugs and psychotropic substances - In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stand vitiated. (Para 16) 2023 LiveLaw (SC) 890

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 52A – Disposal of seized narcotic drugs and psychotropic substances - No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub­section (2) of Section 52A of the NDPS Act. The failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the accused deserves to be set aside. (Para 13, 17) 2023 LiveLaw (SC) 890

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 52A – Disposal of seized narcotic drugs and psychotropic substances - When any contraband / narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in subsection (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. (Para 12) Yusuf @ Asif v. State, 2023 LiveLaw (SC) 890 : 2023 INSC 912

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 52A (2), (3) and (4) - The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act. (Para 10) 2023 LiveLaw (SC) 890

Narcotic Drugs and Psychotropic Substances Act, 1985 - Conditions for personal search as specified in Section 50 of the NDPS Act are applicable only for the search of the physical body of the person and not for the search of any bag carried by the person. (Para 125) 2023 LiveLaw (SC) 856

Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 of the NDPS Act envisions certain requirements for conducting searches, which include the right of the person to be searched to have the search conducted in the presence of a Gazetted Officer or Magistrate if they so desire. The police officer has the obligation to inform the person of this right before proceeding with the search. If the person declines to exercise this right, the search can proceed, but a written statement should be taken from the person indicating their choice. The communication of this right should be clear, either orally or in writing, and should provide only two options: a Gazetted Officer or a Magistrate, who must be independent and not connected to the raiding party. Each person to be searched in a group must be individually informed of their right. If the right is exercised, the police officer can choose whether to take the suspect before a Gazetted Officer or Magistrate, with an endeavor to take them before the nearest Magistrate. Section 50 applies exclusively to searches under the NDPS Act and does not apply to searches conducted under any other statute. In cases where contraband under the NDPS Act is discovered during a search under another statute, the NDPS Act provisions come into effect, even if Section 50 compliance was not required. The burden of proving compliance with Section 50 rests on the prosecution, and any incriminating contraband recovered in violation of Section 50 is inadmissible but does not vitiate the trial, while other articles recovered may be used in separate proceedings. (Para 64) 2023 LiveLaw (SC) 856

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 53 - Any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are “police officers” within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. (Para 10) 2023 LiveLaw (SC) 813

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 54 - For attracting the provisions of Section 54 of the NDPS Act, the prosecution must first establish possession of contraband by the accused, only then will the burden shift to the accused to prove his innocence. The possession of the contraband must be proved beyond reasonable doubt by the prosecution. (Para 16) 2023 LiveLaw (SC) 813

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 50 - Accused were not informed about their right to be searched before a Magistrate or a Gazetted officer - There was a violation of the safeguard provided by Section 50 of the NDPS Act - Conviction cannot be sustained. 2023 LiveLaw (SC) 724

Narcotic Drugs and Psychotropic Substances Act, 1985 - Conviction liable to be set aside if samples weren't drawn in magistrate's presence as per Section 52A. 2023 LiveLaw (SC) 570

Narcotic Drugs and Psychotropic Substances Act, 1985 - In case of prolonged incarceration, liberty will override embargo under Section 37: Supreme Court grants bail. 2023 LiveLaw (SC) 533

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - In case of prolonged incarceration, conditional liberty will override the statutory embargo under Section 37 of the Act. Prolonged incarceration is against fundamental right guaranteed under Article 21, ie, protection of life and personal liberty. (Para 4) 2023 LiveLaw (SC) 533

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 52A - Evidence Act, 1872; Section 114(g) - Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn - Before any proposed disposal / destruction mandate of Section 52A of the NPDS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery - Provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of a physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act. (Para 6-9) 2023 LiveLaw (SC) 549

Narcotics Drugs and Psychotropic Substances Act, 1985; Section 52-A - the process of drawing of samples under Section 52-A of the NDPS Act has to be in the presence and under the supervision of the Magistrate. The entire exercise of collecting the sample must be certified by the Magistrate to be correct. 2023 LiveLaw (SC) 570

Narcotic Drugs and Psychotropic Substances Act, 1985 - Definition of "ganja" under the Act does not include ganja seeds - Ganja seeds not a banned contraband. 2023 LiveLaw (SC) 354

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 – Effect of delay in trial – Grant of bail on ground of undue delay in trial not fettered by Section 37 – Imperative of Section 436A of Code of Criminal Procedure Act – Requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods – Applicable to offences under the NDPS Act – Held, special conditions as enacted under Section 37 can only be considered within constitutional parameters when the court is reasonably satisfied on a prima facie look at the material on record that the accused is not guilty – A plain and literal would effectively exclude grant of bail altogether - Further held, appellant deserves to be enlarged on bail – Appeal allowed. 2023 LiveLaw (SC) 260

Negotiable Instruments Act 1881

Negotiable Instruments Act 1881; Section 138 - In a proceeding under Section 138 of the N.I. Act, the accused cannot rely upon other bank accounts for the dishonoured cheque which relates to specific bank account of the accused. (Para 6) 2023 LiveLaw (SC) 1046

Negotiable Instruments Act 1881; Section 141 (1) - It is not averred anywhere in the complaint that the appellant was in charge of the conduct of the business of the company at the relevant time when the offence was committed. What is stated in the complaint is only that the accused being the partners are responsible for the day-to-day conduct and business of the company. It is also relevant to note that an overall reading of the complaint would not disclose any clear and specific role of the appellant. The appellant has also got a contention that he retired from the partnership firm much prior to the issuance of the cheque in question. Held, that the averments in the complaint filed by the respondent are not sufficient to satisfy the mandatory requirements under Section 141(1) of the NI Act. Since the averments in the complaint are insufficient to attract the provisions under Section 141(1) of the NI Act, to create vicarious liability upon the appellant, he is entitled to succeed in this appeal. The appellant has made out a case for quashing the criminal complaint in relation to him, in exercise of the jurisdiction under Section 482 of Cr.PC. (Para 17) 2023 LiveLaw (SC) 869

Negotiable Instruments Act 1881; Section 141 (1) - Only that person who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company alone shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. (Para 16) 2023 LiveLaw (SC) 869

Negotiable Instruments Act, 1881 - Once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. (Para 45) 2023 LiveLaw (SC) 866

Negotiable Instruments Act, 1881 - Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly. (Para 55) 2023 LiveLaw (SC) 866

Negotiable Instruments Act, 1881 - The fundamental error in the approach lies in the fact that the High Court has questioned the want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque. (Para 62) 2023 LiveLaw (SC) 866

Negotiable Instruments Act, 1881 - When the Courts have concluded that the signature in the cheque has been admitted and its execution has been proved, then the Courts should inquire into either of the two questions: 1. Has the accused led any defense evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? 2. In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the nonexistence of debt/liability by a preponderance of probabilities by referring to the 'particular circumstances of the case? (Para 56) 2023 LiveLaw (SC) 866

Negotiable Instruments Act, 1881; Section 138 and 142(2)(a) - Territorial Jurisdiction - When the case was fixed for final arguments, the Magistrate, on examining the records, came to the conclusion that the court did not have territorial jurisdiction. No opportunity was granted to the complainant to take remedial steps. The Magistrate passed the order without realizing the legal consequences as well as the fact that the trial had remained pending for more than four years and had proceeded without any objection to territorial jurisdiction, till the stage of final arguments. There was a lapse and proper legal guidance, which was not provided to the complainant. Held, that the complainant should not suffer on account of lack of proper legal assistance. Procedural defect / lapse, had a remedy, and was not substantial as to constitute lack of subject-matter jurisdiction. The Code is procedural in nature and technical defects and irregularities should not come in the way of substantial justice. 2023 LiveLaw (SC) 798

Negotiable Instruments Act, 1881; Section 138, 139 - Code of Criminal Procedure, 1973; Section 482 - If the question as to whether the debt or liability being barred by limitation was an issue to be considered in such proceedings, the same is to be decided based on the evidence to be adduced by the parties since the question of limitation is a mixed question of law and fact. It is only in cases wherein an amount which is out and out non-recoverable, towards which a cheque is issued, dishonoured and for recovery of which a criminal action is initiated, the question of threshold jurisdiction will arise. In such cases, the Court exercising jurisdiction under Section 482 CrPC will be justified in interfering but not otherwise. 2023 LiveLaw (SC) 752

Negotiable Instruments Act, 1881; Section 148 - Normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded. (Para 5 - 6) 2023 LiveLaw (SC) 776

Negotiable Instruments Act, 1881; Section 138 - Only when the conviction arise out of the single transaction, concurrent sentence would be merited - Where there were several transactions over a period of time for which the cheques tendered towards payment, were dishonoured, convict cannot take benefit out of the ratio in V.K. Bansal v. State of Haryana, (2013) 7 SCC 211. 2023 LiveLaw (SC) 584

Negotiable Instruments Act, 1881; Section 141 - Offences by Companies - A person will become vicariously liable when a company is accused of the offence under Section 138 (Dishonour of cheque for insufficiency of funds) of the Act, only if such a person was "in charge of" and was "responsible to the company for the conduct of the business of the company" at the time the offence was committed. Just because a person is managing a company and is involved in its day-to-day affairs, he does not automatically come under the ambit of Section 141 of the NI Act. (Para 19) 2023 LiveLaw (SC) 622

Negotiable Instruments Act, 1881; Section 143A(1) - Where a cheque is dishonoured, the interim compensation can be directed to be paid only after the accused has pleaded not guilty. 2023 LiveLaw (SC) 537

Negotiable Instruments Act 1881 - Section 138, 147 - The nature of offence under section 138 of the N.I Act is primarily related to a civil wrong and is a compoundable offence. (Para 10) 2023 LiveLaw (SC) 75

Negotiable Instruments Act 1881; Section 138 - Approval of resolution plan of corporate debtor will not extinguish the liability of erstwhile director for dishonour of cheque. (Para 17, 18 & 47, 52) 2023 LiveLaw (SC) 195

Negotiable Instruments Act 1881; Section 138 - Where the proceedings under Section 138 of the NI Act had already commenced and during the pendency the plan is approved or the company gets dissolved, the directors and the other accused cannot escape from their liability by citing its dissolution. (Para 52) 2023 LiveLaw (SC) 195

Negotiable Instruments Act, 1881; Section 138 - by operation of the provisions of the IBC, the criminal prosecution initiated against the natural persons under Section 138 read with 141 of the NI Act read with Section 200 of the CrPC would not stand terminated. (Para 47) 2023 LiveLaw (SC) 195

Negotiable Instruments Act, 1881; Section 138 - Conviction cannot be confirmed overriding the agreement between the parties to compound the offence- Terms and conditions of the settlement entered into by the parties binds them to settle the dispute amicably, or through an arbitration as has been stated in clause 8 of the Memorandum of Understanding. In such a circumstance, the Appellants cannot be convicted on the basis of the orders passed by the courts below, as the settlement is nothing but a compounding of the offence- This is a very clear case of the parties entering into an agreement and compounding the offence to save themselves from the process of litigation. When such a step has been taken by the parties, and the law very clearly allows them to do the same, the High Court then cannot override such compounding and impose its will. (Para 8, 9, 11) 2023 LiveLaw (SC) 75

Negotiable Instruments Act, 1881; Section 138 - The offence under Section 138 is complete upon dishonour of the cheque but prosecution in relation to such offence is postponed, by virtue of the provisos therein, till the failure of the drawer of the cheque to make the payment within 15 days of receiving the demand notice. (Para 5) 2023 LiveLaw (SC) 125

Negotiable Instruments Act, 1881; Section 138, 142(2)(a) - Section 142(2)(a) vests jurisdiction for initiating proceedings for an offence under Section 138 in the Court where the cheque is delivered for collection, i.e., through an account in the branch of the bank where the payee or holder in due course maintains an account. (Para 12) 2023 LiveLaw (SC) 125

Negotiable Instruments Act, 1881; Section 139 - The standard of proof for rebutting the presumption is that of preponderance of probabilities - once the execution of cheque is admitted, Section 139 of the N.I. Act mandates a presumption that the cheque was for the discharge of any debt or other liability - The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities - To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence - Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (Para 12-20) 2023 LiveLaw (SC) 46

Prevention of Corruption Act, 1988

Prevention of Corruption Act, 1988; Section 7 and 13(1)(d) r/w. 13(2) - In the instant case the pre-trap and post-trap proceedings were duly proved by the prosecution by examining the concerned witnesses, who had duly supported the case of prosecution. Both the courts below have recorded the findings that the prosecution had proved beyond reasonable doubt the conscious acceptance of the tainted currency by the accused and also the recovery of tainted currency from the accused. Therefore, the burden had shifted on the accused to dispel the statutory presumption under Section 20 of the said Act, and prove that it was not accepted as a motive or reward for the performance of his public duty, which the accused had failed to dispel. The explanation offered by the accused did not tally with the statement of the complainant recorded under Section 164 of Cr.P.C. The High Court had also recorded that the defence taken by the accused that the acceptance of tainted currency by him was towards the Audit fees of the Society was not proved by him in as much as there was nothing on record to show that the amount paid by the complainant to the accused was out of the funds of the Society. Both the courts have appreciated the evidence on record threadbare in the right perspective and have found the accused guilty for the offence. (Para 12 - 14) 2023 LiveLaw (SC) 819

Prevention of Corruption Act, 1988; Section 7 and 20 - Presumption where public servant accepts any undue advantage - Once the undue advantage i.e., any gratification whatever, other than the legal remuneration is proved to have been accepted by the accused, the Court is entitled to raise the presumption under Section 20 that he accepted the undue advantage as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly. No doubt, such presumption is rebuttable. (Para 11) 2023 LiveLaw (SC) 819

Prevention of Corruption Act, 1988; Section 19 - The question with regard to the validity of such sanction should be raised at the earliest stage of the proceedings, however could be raised at the subsequent stage of the trial also - The stages of proceedings at which an accused could raise the issue with regard to the validity of the sanction would be the stage when the Court takes cognizance of the offence, the stage when the charge is to be framed by the Court or at the stage when the trial is complete i.e., at the stage of final arguments in the trial - Competence of the court trying the accused also would be dependent upon the existence of the validity of sanction, and therefore it is always desirable to raise the issue of validity of sanction at the earliest point of time - In case the sanction is found to be invalid, the trial court can discharge the accused and relegate the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with the law. (Para 10) 2023 LiveLaw (SC) 595

Prevention of Corruption Act, 1988; Section 19(3), 19(4) - Findings recorded by the Special Judge could not have been and should not have been reversed or altered by the High Court in the petition filed by the accused challenging the said order of the Special Judge, in view of the specific bar contained in sub-section (3) of Section 19, and that too without recording any opinion as to how a failure of justice had in fact been occasioned to the respondent-accused as contemplated in the said subsection (3). (Para 12-14) 2023 LiveLaw (SC) 595

Prevention of Corruption Act, 1988; Section 13(1)(e) - Second proviso is in the nature of additional safeguard for the public servant who are accused of the offence punishable under Section 13(1)(e) of the 1988 Act against an investigation by a police officer without the knowledge and consent of superior police officer not below the rank of Superintendent of Police. A superior police officer of the rank of Superintendent of Police or any officer higher in rank is required to pass an order before an investigation, if any, for such offence is commenced. It is needless to point-out that, before directing such investigation, the Superintendent of Police or an officer superior to him is required to apply his mind to the information and come to an opinion that the investigation on such allegations is necessary. (Para 88) 2023 LiveLaw (SC) 365

Prevention of Corruption Act, 1988; Section 7 - To attract Section 7 of the PC Act, the demand for gratification has to be proved by the prosecution beyond a reasonable doubt. The word used in Section 7, as it existed before 26th July 2018, is 'gratification'. There has to be a demand for gratification. It is not a simple demand for money, but it has to be a demand for gratification. If the factum of demand of gratification and acceptance thereof is proved, then the presumption under Section 20 can be invoked, and the Court can presume that the demand must be as a motive or reward for doing any official act. This presumption can be rebutted by the accused. (Para 11) 2023 LiveLaw (SC) 314

Prevention of Corruption Act, 1988 - Demand and recovery both must be proved to sustain conviction under the Act - Conviction set aside as demand was not proved. 2023 LiveLaw (SC) 232

Prevention of Corruption Act, 1988 - In the present case, there are no circumstances brought on record which will prove the demand for gratification. Therefore, the ingredients of the offence under Section 7 of the PC Act were not established and consequently, the offence under Section 13(1)(d) will not be attracted. 2023 LiveLaw (SC) 211

Prevention of Corruption Act, 1988 - the complainant did not produce a copy of the application made by him for providing electricity meter - the complainant did not clearly tell that he had given such application. In absence of proof of making such application, the prosecution's case regarding demand of bribe for installing new electricity meter becomes doubtful. (Para 18) 2023 LiveLaw (SC) 211

Prevention of Corruption Act, 1988; Section 7 - Demand of Gratification - When we consider the issue of proof of demand within the meaning of Section 7, it cannot be a simpliciter demand for money but it has to be a demand of gratification other than legal remuneration - Every demand made for payment of money is not a demand for gratification. It has to be something more than mere demand for money. (Para 16, 17) 2023 LiveLaw (SC) 211

Prevention of Corruption Act, 1988; Sections 20 and 7 - The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are 'demand' and 'acceptance' of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption. (Para 11) 2023 LiveLaw (SC) 211

Prevention of Corruption Act, 1988; Sections 7 and 13 – In absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence – Also, allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt - the Constitution Bench ruling in Neeraj Dutta v. State, 2022 LiveLaw (SC) 1029 that direct evidence of demand or acceptance of bribe is not necessary for a conviction under the Act does not dilute the requirement of proof beyond reasonable doubt. (Para 14) 2023 LiveLaw (SC) 211

Prevention of Corruption Act, 1988; Sections 7 and 13 - The Constitution Bench was dealing with the issue of the modes by which the demand can be proved and laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. (Para 14) 2023 LiveLaw (SC) 211

Prevention of Corruption Act, 1988 - It is desirable that High Courts maintain a "hands-off" approach and not quash FIRs relating to corruption cases at investigation stage-This is because, it is difficult to form an opinion conclusively at the stage of reading a first information report that the public servant is either in or not in possession of property disproportionate to the known sources of his/her income. It would all depend on what is ultimately unearthed after the investigation is complete -The considerations that could apply to quashing of first information reports pertaining to offences punishable under general penal statutes ex proprio vigore may not be applicable to a P.C. Act offence. (Para 74) 2023 LiveLaw (SC) 158

Prevention of Corruption Act, 1988 - Zero Tolerance to Corruption - Though it is the preambular promise of the Constitution to secure social justice to the people of India by striving to achieve equal distribution of wealth, it is yet a distant dream. If not the main, one of the more prominent hurdles for achieving progress in this field is undoubtedly 'corruption'. Corruption is a malaise, the presence of which is all pervading in every walk of life. (Para 49) 2023 LiveLaw (SC) 158

Prevention of Cruelty to Animals Act, 1960

Prevention of Cruelty to Animals Act, 1960 - Jallikattu Law can't be termed arbitrary merely because bulls lack natural ability to run like horses. 2023 LiveLaw (SC) 447

Prevention of Cruelty to Animals Act, 1960 - The Supreme Court has expressed its disagreement with the 2014 division bench judgment in Animal Welfare Board of India v. A. Nagaraja And Ors insofar as it held that Jallikattu is not a cultural practice in Tamil Nadu. As per the materials placed before the Court, Jallikattu is going in Tamil Nadu for at least the last one century and whether or not it as an integral part of Tamil culture could not have been decided by the Court. When the legislature has declared that Jallikattu is part of the cultural heritage of TN state, the judiciary cannot take a different view. Legislature is best suited to decide that. The preamble to the state amendment had stated that Jallikettu is a part of cultural heritage of the State. We will not disrupt the view of the legislature that it is part of the cultural heritage of the state. 2023 LiveLaw (SC) 447

Prevention of Cruelty to Animals Act, 1960 - there is no precedent to show that the Constitution of India recognises fundamental rights for animals. 2023 LiveLaw (SC) 447

Prevention of Dangerous Activities

Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986; Section 3(2) - Drastic provisions of the Act are not to be invoked at the drop of a hat. (Para 41) 2023 LiveLaw (SC) 743

Prevention of Money Laundering Act, 2002

Prevention of Money Laundering Act, 2002 - Directorate of Enforcement (ED) - Being a premier investigating agency, charged with the onerous responsibility of curbing the debilitating economic offence of money laundering in our country, every action of the ED in the course of such exercise is expected to be transparent, above board and conforming to pristine standards of fair play in action. The ED, mantled with far-reaching powers under the stringent Act of 2002, is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and with the highest degree of dispassion and fairness. (Para 20) 2023 LiveLaw (SC) 844

Prevention of Money Laundering Act, 2002; Section 19 - In any event, it is not open to the ED to expect an admission of guilt from the person summoned for interrogation and assert that anything short of such admission would be an 'evasive reply'. (Para 25) 2023 LiveLaw (SC) 844

Prevention of Money Laundering Act, 2002; Section 19 and 50 - Mere noncooperation of a witness in response to the summons would not be enough to render him/her liable to be arrested. (Para 25) 2023 LiveLaw (SC) 844

Prevention of Money Laundering Act, 2002; Section 19 - Any non-compliance of the mandate of Section 19 of the PMLA, 2002 would enure to the benefit of the person arrested. For such noncompliance, the Competent Court shall have the power to initiate action under Section 62 of the PMLA, 2002. (Para 39) 2023 LiveLaw (SC) 611

Prevention of Money Laundering Act, 2002; Section 19 (3) - When an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus would lie. Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial. (Para 82) 2023 LiveLaw (SC) 611

Prevention of Money Laundering Act, 2002; Section 45 - The respondent has undergone over 620 days of custody. Since in the exercise of its discretion, the High Court has come to the conclusion that the respondent should be released on bail, we are not interfering with the order under Article 136 of the Constitution. (Para 3) 2023 LiveLaw (SC) 603

Prevention of Money Laundering Act (Act 15 of 2003) – Section 3 – Registration of ECIR – Effect of delay – Information about all complaints, the nature of the complaints, and the amount of money allegedly collected towards illegal gratification had all come into the public domain – Once a piece of information relating to the acquisition of a huge amount of illegal gratification in the matter of public employment has come into the public domain, it is the duty of the ED to register an Information Report – Held, registration of ECIR does not amount to fishing expedition – Further held, argument that there is no explanation for the delay in registering the ECIR self-serving – Writ petition challenging ED investigation dismissed. 2023 LiveLaw (SC) 440

Prevention of Money Laundering Act, 2002 - Mere fact that chargesheet has been filed for the predicate offences is not a ground to release the accused on bail in connection with the offences under the PML Act. 2023 LiveLaw (SC) 433

Prevention of Money Laundering Act, 2003 – Sections 3 and 2(1)(u) – Offence of Money Laundering – Definition of proceeds of crime – In offences of corruption, criminal activity and generation of proceeds of crime go hand-in-hand – Wherever there are allegations of corruption, the acquisition of proceeds of crime itself tantamount to money laundering – Even if an intangible property is derived as a result of criminal activity relating to a scheduled offence, it becomes proceeds of crime under Section 2(1)(u) – Held, arguments that there are no foundational facts or jurisdictional facts unsustainable and as such, proceedings before Enforcement Directorate not illegal – Writ petition challenging ED investigation dismissed. 2023 LiveLaw (SC) 440

Prevention of Money Laundering Act, 2002; Section 45 - Rigours under Section 45 are applicable to anticipatory bail applications. (Para 5) 2023 LiveLaw (SC) 138

Prevention of Money-laundering Act, 2002; Section 3 - The area in which the property is derived or obtained or even held or concealed, will be the area in which the offence of money laundering is committed. (Para 39-40) 2023 LiveLaw (SC) 86

Prevention of Money-laundering Act, 2002; Section 44 - It is the Special Court constituted under the PMLA that would have jurisdiction to try even the scheduled offence. Even if the scheduled offence is taken cognizance of by any other Court, that Court shall commit the same, on an application by the concerned authority, to the Special Court which has taken cognizance of the offence of money-laundering. (Para 36) 2023 LiveLaw (SC) 86

Prevention of Money Laundering Act (Act 15 of 2003); Sections 3 and 44 – Territorial Jurisdiction of Special PMLA Court – Place of commission of the offence of money-laundering – The involvement of a person in any one or more of certain processes or activities connected with the proceeds of crime, namely, concealment, possession, acquisition, use, projecting as untainted property, or claiming as untainted property, constitutes the offence of money-laundering – All the places where any one or more of these processes or activities take place are the places where the offence of money-laundering has been committed – Triable by the special court(s) constituted for the area(s) in which the offence of money-laundering has been committed – Held, the petition could not be entertained since the issue of territorial jurisdiction could not be decided in a writ petition, especially in the presence of a serious factual dispute about the place or places of commission of the offence – Petition dismissed. (Paras 38 to 40) 2023 LiveLaw (SC) 86

Protection of Children from Sexual Offences Act, 2012

Protection of Children from Sexual Offences Act, 2012 - The social environment around the victim child may not always be conducive to the victim's rehabilitation. Only the monetary compensation is not enough. Only the payment of compensation will not amount to rehabilitation in a true sense. Perhaps the rehabilitation of the girl victims in life should be part of the “Beti Bachao Beti Padhao” campaign of the Central Government. As a welfare State, it will be the duty of the Government to do so. (Para 16) 2023 LiveLaw (SC) 875

Protection of Children from Sexual Offences Act, 2012 - The State needs to ensure that the children who are the victims of the offence continue with their education. (Para 16) 2023 LiveLaw (SC) 875

Protection of Children from Sexual Offences Act, 2012 - Whenever a child is subjected to sexual assault, the State or the Legal Services Authorities should ensure that the child is provided with a facility of counselling by a trained child counsellor or child psychologist. It will help the victim children to come out of the trauma, which will enable them to lead a better life in future. (Para 16) 2023 LiveLaw (SC) 875

Protection of Children from Sexual Offences Act, 2023 – the State has the obligation to provide 'support persons' as per the POCSO Act to child victims of sexual offences and that the appointment of support persons cannot be made optional. The need for support persons should not be left to the discretion of the parents of the child victims. (Para 3) 2023 LiveLaw (SC) 892

Protection of Children from Sexual Offences Act, 2023 - There is a need for comprehensive guidelines regarding the engagement of support persons in child welfare cases. The guidelines, to be finalized within eight weeks, are expected to consider various factors, including the establishment of a uniform standard of education for support persons. The court discourages the prevalent practice of limiting support persons' engagements to a specific time frame and emphasizes the importance of providing reasonable remuneration for support persons. Additionally, the guidelines propose the creation of an All India Portal and the maintenance of a panel of NGOs and support persons. (Para 5) 2023 LiveLaw (SC) 892

Protection of Children from Sexual Offences Act, 2012 - Juvenile Justice (Care and Protection of Children) Act, 2015; Section 3 - A support person – whether involved from the early stages of lodging a report or brought on board shortly thereafter - can play a tremendous role in offering encouragement, reassurance, and guidance, merely from their knowledge of the legalese, armed with a compassionate child-friendly approach. Their potential in providing moral support and guidance, which directly translates to better and more just outcomes both in terms of prosecution, and rehabilitation, cannot be overstated. To fulfil their role as envisaged, their primary focus must be the child's immediate care and protection, and to play the role of a helpful intermediary between the child, its family/guardian, and the various institutional stakeholders and authorities. In these interactions, the support person should bear in mind the principles enunciated in Section 3 of the Act, 2015 while engaging with the child victim, and their families. These include – the principles of dignity and worth, participation, best interest, safety, positive measures, non-stigmatising semantics, non-waiver of rights, equality and non-discrimination, and right to privacy and confidentiality. (Para 6) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Act, 2012 - The enactment and bringing into force of the POCSO Act was not merely in furtherance of this country's commitment to international instruments, but its resolve to and attempt at creating a world as secure and as free from fear, for the most innocent and vulnerable section of its citizens, i.e., children and young adults. Behaviour - physical, verbal, and non-verbal, ranging from what discomfits a child to as horrifying as rape and physical sexual abuse have been criminalized. Special mechanisms to provide access to the justice delivery system, and ensure speedy justice, have been devised. Yet, a society's commitment to such a cause does not cease by mere enactment of any law, but its willingness, and those governing and administering it, to create and ensure effective overall frameworks which support and strengthen its institutions. (Para 1) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Act, 2012 - There are numerous aids prepared, to help in understanding the role of the support person, and how to maximise their impact. The Ministry of Women and Child Development released the Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012 which offers detailed guidance for the use of professionals and experts under the POCSO Act (albeit issued in 2013, i.e., prior to the POCSO Rules, 2020). Similarly, another useful resource tailored specifically for the use of support persons, is the 'Handbook for Support Persons 2021 – Assisting Child Victims of Sexual Violence' which is a handy open access resource, available for download from the internet. These resources, comprehensively elucidate child-friendly best practices, and explain what not to do, as a support person, in a lucid and accessible manner. (Para 7) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Act, 2012 - Witness Protection Scheme, 2018 - Importance of a support person accompanying the child victim at the time of recording statement and deposition - In addition to maintaining confidentiality of all information, and addressing the concerns of the child and family, the support person is responsible for accompanying the child during recording of statement, medical examination, depositions, and to assist in all other interactions at the investigation, pre-trial, and trial stage. The support person is to make available public or private emergency and crisis services; ensure availability of free legal aid; provide assistance with navigating the victim compensation scheme; track the status of investigation, arrest, and filing of charges of the accused person; follow the dates of the court proceedings to enable the victim or family to attend as required; and be abreast of any other developments such as grant of bail, detention status, etc. of the accused. (Para 5) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Act, 2012; Section 39 - Protection of Children from Sexual Offences Rules, 2020 – Directions issued on Comprehensive assessment of support persons ecosystem, Participation of relevant authorities for such assessment, Data collection from district child protection unit, Guidelines and training, Periodic training of all personnel, Reporting mechanism establishment, Standard operating procedure (sop), Role of support persons, Remuneration of support persons to be commensurate with qualification and experience, Model guidelines and precedent consideration, Comprehensive victim support, Role of support institutions and state's responsibility for implementation - Concerned authorities to file a status report by October 4, 2023. (Para 11) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Act, 2012; Section 39 - Protection of Children from Sexual Offences Rules, 2020; Rules 4, 5, and 10 - Model Guidelines - A support person is to provide information, emotional and psychological support, and practical assistance which are often crucial to the recovery of the child. This can go a long way in helping them cope with the aftermath of the crime and with the strain of any criminal proceedings – in many ways a support person acts as guardian ad litem for the child. (Para 4) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Rules, 2020 - In crimes against children, it is not only the initiating horror or trauma that is deeply scarring; that is aggravated by the lack of support and handholding in the days that follow. In such crimes, true justice is achieved not merely by nabbing the culprit and bringing him to justice, or the severity of punishment meted out, but the support, care, and security to the victim (or vulnerable witness), as provided by the state and all its authorities in assuring a painless, as less an ordeal an experience as is possible, during the entire process of investigation, and trial. The support and care provided through state institutions and offices is vital during this period. Furthermore, justice can be said to have been approximated only when the victims are brought back to society, made to feel secure, their worth and dignity, restored. Without this, justice is an empty phrase, an illusion. The POCSO Rules 2020, offer an effective framework in this regard, it is now left to the State as the biggest stakeholder in it – to ensure its strict implementation, in letter and spirit. (Para 12) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Rules, 2020 - Role of a 'Support Person' - From the point of registering an FIR/complaint under the POCSO Act, the victim and their family are required to interact with the police machinery, medical officers and hospitals, the Magistrate, Special Court and/or Juvenile Justice Board, the concerned CWC, and other stakeholders – which in itself can be daunting and overwhelming (over and above the already traumatic experience of the crime itself), often dissuading them from pursuing the case altogether. Noticing the need for support at various stages, the role of a 'support person' was institutionalised in the POCSO Rules, 2020, to fill this lacuna. (Para 3) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Rules, 2020 - Role of a 'Support Person' - The present writ petition, arose from the strife caused to an individual victim in her painstaking struggle for justice while navigating the police, investigation stage, and court processes, for the prosecution of an offence under the POCSO Act. At numerous stages, she was revictimized, and faced severe hardships; the issues arising from the individual case, have been dealt with by way of continuing mandamus, wherein this court through a series of orders has monitored the aspects requiring special attention. During those proceedings, it was noticed that the role of a 'support person' as envisaged in the POCSO Rules, 2020, despite being a progressive step – remains unfulfilled, or is given effect to, in a partial or ad-hoc manner, thus limiting its positive potential in offering support to victims and their families. (Para 2) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Rules, 2020; Rule 4(14) 'Form-A' - A support person has been appointed only in 4% of POCSO cases. The availability of services of a support person is not merely directory or suggestive – but a legal entitlement. (Para 9) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Rules, 2020; Rules 2(f), 4(8) and 5(6) - Clearly delineating the scope of assistance to be rendered by a support person, the Rules also stipulate that if the Child Welfare Committee (CWC), in contravention of its duties fails to appoint one, or for whatever reason, the child victim and their family wish to engage someone else, they are free to seek assistance from a qualified support person externally [ref: proviso to Rule 5(6)]. Termination of their services, for whatever reason, is also covered under Rule 4(11). (Para 3) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Act, 2012 - POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6, in its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence. (Para 12) 2023 LiveLaw (SC) 502

Protection of Children from Sexual Offences Act, 2012; Section 6 - Appellant concurrently convicted under Section 6 of the POCSO Act as well as Section 10 of the Prohibition of Child Marriage Act - Conviction set aside. 2023 LiveLaw (SC) 538

Protection of Children from Sexual Offences Act, 2012; Section 6 - Accused had put his penis into mouth of the victim aged about 10 years and discharged semen - The accused has committed an offence of aggravated penetrative sexual assault as he has committed penetrative sexual assault on a child below twelve years. (Para 7-11) 2023 LiveLaw (SC) 502

Protection of Children from Sexual Offences Act, 2012; Section 94 - Juvenile Justice (Care and Protection of Children) Act, 2015; Section 94 - Wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the Juvenile Justice Act - School transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandate - Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. 2023 LiveLaw (SC) 538

Protection of Women from Domestic Violence Act, 2005

Protection of Women from Domestic Violence Act, 2005 - In a complaint filed under the Protection of women from Domestic Violence Act, 2005, it is not open to the Court to impose such onerous conditions upon the appellant, who claims to be a victim of domestic violence. What the Appellate Court and the High Court have ordered are actually in the nature of penalty for the appellant not proceeding with the trial. In the first instance, it is impermissible in law. 2023 LiveLaw (SC) 148

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 9(1)(b) of the SC/ST Act grants State Governments the power to delegate the authority to arrest, investigate, and prosecute offenders. This delegation of power is a vital aspect of the Act and should not be curtailed by any rules framed under Section 23 of the SC/ST Act. 2023 LiveLaw (SC) 858

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - The officers, who institute an FIR, based on any complaint, are duty bound to be vigilant before invoking any provision of a very stringent statute, like the SC/ST Act, which imposes serious penal consequences on the concerned accused. The officer has to be satisfied that the provisions he seeks to invoke prima facie apply to the case at hand. We clarify that our remarks, in no manner, are to dilute the applicability of special/stringent statutes, but only to remind the police not to mechanically apply the law, dehors reference to the factual position. 2023 LiveLaw (SC) 421

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; Section 3(1)(x) - Before subjecting an accused to a trial for alleged commission of offence, it is desirable that the caste related utterances are outlined either in the FIR or, atleast, in the chargesheet. The same would enable it to ascertain if a case is made out for an offence under the SC/ST Act before taking cognisance of the matter. 2023 LiveLaw (SC) 469

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Supreme Court refuses to interfere with HC order quashing FIR lodged by a Dalit IIT faculty member against his colleagues alleging caste-based harassment - Court favours a conciliatory approach and urges the Chairman of Board of Governor to invite the complainant and the accused for talks - Court observes allegations and counter-allegations damage the repute of a premier institution like IIT - Court impresses upon them to ensure that they work together as a team in the best interests of the institution and their students, and do not allow any unfortunate and untoward incidents to occur which might hurt the sentiments, feelings, respect and dignity of each other - Court says the continuation of criminal proceedings will be an impediment to restoration of normalcy and bringing cordiality back between the appellant and the respondents in their professional and personal capacities. 2023 LiveLaw (SC) 126

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; Sections 3(1)(v) and (va) - Code of Criminal Procedure, 1973; Section 482 - Private civil dispute between the parties is converted into criminal proceedings - Initiation of the criminal proceedings therefore, is nothing but an abuse of process of law and Court - Complaint and summoning order quashed. 2022 LiveLaw (SC) 14

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) - Directions - To fulfil the promise that the PoSH Act holds out to working women all over the country, it is deemed appropriate to issue the following directions : (I) The Union of India, all State Governments and Union Territories are directed to undertake a timebound exercise to verify as to whether all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted ICCs/LCs/ICs, as the case may be and that the composition of the said Committees are strictly in terms of the provisions of the PoSH Act. (ii) It shall be ensured that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the email IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, as also the relevant rules, regulations and internal policies are made readily available on the website of the concerned Authority/Functionary/Organisation/Institution/Body, as the case may be. The information furnished shall also be updated from time to time. (iii) A similar exercise shall be undertaken by all the Statutory bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes. (iv) Immediate and effective steps shall be taken by the authorities/ managements/employers to familiarize members of the ICCs/LCs/ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and the Report submitted. (v) The authorities/management/employers shall regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women's groups about the provisions of the Act, the Rules and relevant regulations. (vi) The National Legal Services Authority (NALSA) and the State Legal Services Authorities (SLSAs) shall develop modules to conduct workshops and organize awareness programmes to sensitize authorities / managements / employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar. (vii) The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation programmes, seminars and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules. (viii) A copy of this judgment shall be transmitted to the Secretaries of all the Ministries, Government of India who shall ensure implementation of the directions by all the concerned Departments, Statutory Authorities, Institutions, Organisations etc. under the control of the respective Ministries. A copy of the judgment shall also be transmitted to the Chief Secretaries of all the States and Union Territories who shall ensure strict compliance of these directions by all the concerned Departments. It 2 shall be the responsibility of the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory to ensure implementation of the directions issued. (ix) The Registry of the Supreme Court of India shall transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, NALSA, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts. The Registry shall also transmit a copy of this judgment to the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and the Engineering Council of India for implementing the directions issued. (x) Member-Secretary, NALSA is requested to transmit a copy of this judgment to the Member Secretaries of all the State Legal Services Authorities. Similarly, the Registrar Generals of the State High Courts shall transmit a copy of this judgment to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective States. (xi) The Chairperson, Bar Council of India and the Apex Bodies mentioned in sub-para (ix) above, shall in turn, transmit a copy of this judgment to all the State Bar Councils and the State Level Councils, as the case may be. The Union of India and all States/UTs are directed to file their affidavits within eight weeks for reporting compliances. (Para 77) 2023 LiveLaw (SC) 424

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) - Central Civil Services (Classification, Control and Appeal) Rules, 1965; Rule 14 - Non-framing of the articles of charge – Effect of - In the instant case, though the Committee appointed by the Disciplinary Authority did not hold an inquiry strictly in terms of the step-by-step procedure laid down in Rule 14 of the CCS (CCA) Rules, nonetheless, we have seen that it did furnish copies of all the complaints, the depositions of the complainants and the relevant material to the appellant, called upon him to give his reply in defence and directed him to furnish the list of witnesses that he proposed to rely on. Records also reveal that the appellant had furnished a detailed reply in defence. He had also submitted a list of witnesses and depositions. This goes to show that he was well-acquainted with the nature of allegations levelled against him and knew what he had to state in his defence. Given the above position, non-framing of the articles of charge cannot be said to be detrimental to the interest of the appellant. (Para 70) 2023 LiveLaw (SC) 424

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) - Inquiry Proceedings - Defects and the Procedural Lapses - In fact, the glaring defects and the procedural lapses in the inquiry proceedings took place only thereafter, in the month of May, 2009, when 12 hearings, most of them back-to-back, were conducted by the Committee at a lightning speed. On the one hand, the Committee kept on forwarding to the appellant, depositions of some more complainants received later on and those of other witnesses and called upon him to furnish his reply and on the other hand, it directed him to come prepared to cross-examine the said complainants and witnesses as also record his further deposition, all in a span of one week. Even if the medical grounds taken by the appellant seemed suspect, the Committee ought to have given him reasonable time to prepare his defence, more so when his request for being represented through a lawyer had already been declined. It was all this undue anxiety that had led to short circuiting the inquiry proceedings conducted by the Committee and damaging the very fairness of the process. (Para 71) 2023 LiveLaw (SC) 424

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) - Inquiry Proceedings - Fairness of the Process - the appellant 3 cannot be faulted for questioning the process and its outcome. There is no doubt that matters of this nature are sensitive and have to be handled with care. The respondents had received as many as seventeen complaints from students levelling serious allegations of sexual harassment against the appellant. But that would not be a ground to give a complete go by to the procedural fairness of the inquiry required to be conducted, more so when the inquiry could lead to imposition of major penalty proceedings. When the legitimacy of the decision taken is dependent on the fairness of the process and the process adopted itself became questionable, then the decision arrived at cannot withstand judicial scrutiny and is wide open to interference. It is not without reason that it is said that a fair procedure alone can guarantee a fair outcome. In this case, the anxiety of the Committee of being fair to the victims of sexual harassment, has ended up causing them greater harm. (Para 72) 2023 LiveLaw (SC) 424

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) - Inquiry Proceedings - Principles of Natural Justice - the proceedings conducted by the Committee with effect from the month of May, 2009, fell short of the “as far as practicable” norm prescribed in the relevant Rules. The discretion vested in the Committee for conducting the inquiry has been exercised improperly, defying the principles of natural justice. As a consequence thereof, the impugned judgment upholding the decision taken by the EC of terminating the services of the appellant, duly endorsed by the Appellate Authority cannot be sustained and is accordingly quashed and set aside with the following directions: (i) The matter is remanded back to the Complaints Committee to take up the inquiry proceeding as they stood on 5th May 2009. (ii) The Committee shall afford adequate opportunity to the appellant to defend himself. (iii) The appellant shall not seek any adjournment of the proceedings. (iv) A Report shall be submitted by the Committee to the Disciplinary Authority for appropriate orders. (v) Having regard to the long passage of time, the respondents are directed to complete the entire process within three months from the first date of hearing fixed by the Committee. (vi) The procedure to be followed by the Committee and the Disciplinary Authority shall be guided by the principles of natural justice. (vii) The Rules applied will be as were applicable at the relevant point of time. (viii)The decision taken by the Committee and the Disciplinary Authority shall be purely on merits and in accordance with law. (ix) The appellant will not be entitled to claim immediate reinstatement or back wages till the inquiry is completed and a decision is taken by the Disciplinary Authority. (Para 73) 2023 LiveLaw (SC) 424

Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976

Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 - Object behind enacting the Act, 1976 is to provide for forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators, and at the same time to ensure effective prevention of smuggling activities and foreign exchange manipulation - It is necessary to deprive persons engaged in such activities and manipulations of their ill-gotten gains. It also provides that such persons have been augmenting such gains by violations of wealth tax, income tax or other laws or by other means and have thereby been increasing their resources for operating in a clandestine manner and to nail such persons who are holding the properties acquired by them through such gains in the name of their relatives, associates and confidants. (Para 9) 2023 LiveLaw (SC) 226

Unlawful Activities (Prevention) Act, 1967

Unlawful Activities (Prevention) Act, 1967 - In National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 held that the expression “prima facie true” would mean that the materials / evidence collated by the investigating agency in reference to the accusation against the accused concerned in the chargesheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth. In the case of the appellants, contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused. Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of records of these two appeals. Reference to the activities of the accused are in the nature of ideological propagation and allegations of recruitment. No evidence of any of the persons who are alleged to have been recruited or have joined this “struggle” inspired by the appellants has been brought before us. Thus, we are unable to accept NIA's contention that the appellants have committed the offence relating to support given to a terrorist organisation. (Para 36) 2023 LiveLaw (SC) 575

Unlawful Activities (Prevention) Act, 1967 - In the case of Zahoor Ahmad Shah Watali, the factors for granting bail under normal circumstances were discussed. It was held that the nature and seriousness of the offences, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tempered with; the larger interest of the public or the State would be relevant factors for granting or rejecting bail. Juxtaposing the appellants' case founded on Articles 14 and 21 of the Constitution of India with the aforesaid allegations and considering the fact that almost five years have lapsed since they were taken into custody, we are satisfied that the appellants have made out a case for granting bail. Allegations against them no doubt are serious, but for that reason alone bail cannot be denied to them. While dealing with the offences under Chapters IV and VI of the 1967 Act, we have referred to the materials available against them at this stage. These materials cannot justify continued detention of the appellants, pending final outcome of the case under the others provisions of the 1860 Code and the 1967 Act. (Para 43) 2023 LiveLaw (SC) 575

Unlawful Activities (Prevention) Act, 1967 - Mere participation in seminars by itself cannot constitute an offence under the bail-restricting Sections of the 1967 Act. (Para 29) 2023 LiveLaw (SC) 575

Unlawful Activities (Prevention) Act, 1967; Section 43D - A bail restricting clause cannot denude the jurisdiction of a Constitutional Court in testing if continued detention in a given case would breach the concept of liberty enshrined in Article 21 of the Constitution of India, would apply in a case where such a bail-restricting clause is being invoked on the basis of materials with prima facie low-probative value or quality. (Para 42 - 43) 2023 LiveLaw (SC) 575

Unlawful Activities (Prevention) Act, 1967; Section 15 - Mere possession of literature even if it inspires or propagates violence by itself would neither amount to a 'terrorist act' within the meaning of Section 15 of the Act, nor any other offences under Chapters IV and VI of the Act. (Para 26) 2023 LiveLaw (SC) 575

Unlawful Activities (Prevention) Act, 1967 - The Supreme Court set aside an order of the Bombay High Court acquitting former Delhi University professor and activist G.N. Saibaba as well as others over their alleged Maoist links and remanded the matter back to the high court to be considered afresh by a different bench. 2023 LiveLaw (SC) 438

Unlawful Activities (Prevention) Act, 1967; Section 43D(5) - Materials placed on record do not state reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA are prime facie true - bail granted to two alleged Maoists. 2023 LiveLaw (SC) 317

Unlawful Activities (Prevention) Act, 1967 - Section 10(a)(i) does not suffer from any vagueness and/or on the ground unreasonable and/or disproportionate. (Para 16.1) 2023 LiveLaw (SC) 234

Unlawful Activities (Prevention) Act, 1967 - the view taken by this Court in the cases of State of Kerala v. Raneef, (2011) 1 SCC 784; Arup Bhuyan v. Union of India, (2011) 3 SCC 377 and Sri Indra Das v. State of Assam, 2011 (3) SCC 380 taking the view that under Section 3(5) of Terrorists and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 mere membership of a banned organization will not incriminate a person unless he resorts to violence or incites people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence and reading down the said provisions to mean that over and 2 above the membership of a banned organization there must be an overt act and/or further criminal activities and adding the element of mens rea are held to be not a good law. (Para 18) 2023 LiveLaw (SC) 234

Unlawful Activities (Prevention) Act, 1967 - Upholds the Constitutionality of Section 10(a)(i) - Overrules the judgments in Arup Bhuyan v. State of Assam, Indra Das v. State of Assam and State of Kerala v. Raneef which held that mere membership of a banned association is not sufficient to constitute an offence under the Unlawful Activities (Prevention) Act 1967 or the Terrorism and Disruptive Activities (Prevention) Act, unless it is accompanied with some overt violent-Court ought not to have read down Section 10(a)(i) of the UAPA, 1967 more particularly when neither the constitutional validity of Section 10(a)(i) of the UAPA, 1967 was under challenge nor the Union of India was heard. (Para 11.5, 18) 2023 LiveLaw (SC) 234

Unlawful Activities (Prevention) Act, 1967 - When an association is declared unlawful by notification issued under Section 3 which has become effective of sub-section 3 of that Section, a person who is and continues to be a member of such association is liable to be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine under Section 10(a)(i) of the UAPA, 1967. (Para 18) 2023 LiveLaw (SC) 234

Unlawful Activities (Prevention) Act, 1967; Section 10(a)(i) - Mere possibility of misuse cannot be a ground and/or relevant consideration while considering the constitutionality. (Para 16) 2023 LiveLaw (SC) 234

Unlawful Activities (Prevention) Act, 1967; Section 10(a)(i) - Once an organization is declared unlawful after due procedure and despite that a person who is a member of such unlawful association continues to be a member of such unlawful association then he has to face the consequences and is subjected to the penal provisions as provided under Section 10 more particularly Section 10(a)(i) of the UAPA, 1967. (Para 14.5) 2023 LiveLaw (SC) 234